142 Ala. 698 | Ala. | 1904
This is an action of statutory ejectment. While other lands were described in the complaint, by
The plaintiff offered in evidence a patent to the lands above described issued by the State of Alabama to Thos. Henry on the 2nd day of January, 1872, and then offered in evidence a certified copy of the last will and testament of Thoifias Henry, deceased, devising the lands to plaintiff, together with the certificate of the judge of probate ■of Mobile county, showing the probate and record of said will. The foregoing was all of the plaintiff’s evidence.
The defense attempted by the defendant was ten years adverse possession.
- The defendant offered in evidence what purported to be a tax deed made to defendant by Cyrus D. Hogue, Auditor, on the 3d day of April, 1890, the lands contained in said deed are described as follows, to-wit: N. E. 1-4 of section 36, township 2, Range 4, lying and being situate in Mobile county, Alabama. The deed was offered merely for the purpose of showing color of title. The objection made by plaintiff to the deed was based on the ground that the deed was absolutely void and not self proving. The court sustained the objection and the defendant duly excepted to the ruling of the court. It must be conceded that the tax deed offered in evidence is not effective as a muniment of title, nor was it depended upon by the defendant as such.
The insistence of the appellant is, that a deed may be void and yet be admissible in evidence to show color of title. This insistence is amply supported by authority, and many .of the deeds which have been held by this court to operate as color of title were void tax deeds. Stovall v. Fowler, 72 Ala. 77; Childress v. Calloway, 76 Ala. 128; Hughs v. Anderson. 79 Ala. 209; Florence Land Co. v. Warren, 91 Ala. 533; Gist v. Beaumont, 104 Ala. 347; Zundel v. Baldwin, 114 Ala. 328; Reddick, et al. v. Long, 124 Ala. 260; Dorlan v. Westervitch, 37 So. Rep. 382.
It has been observed that the only objections made to' the deed were, that it was absolutely void and that it was not self-proving. Where a paper writing is offered to show color of title it is not necessary that its execution should be proved. — Gist v. Beaumont, 104 Ala., 347 Ala. State Land Co. v. Kyle, 99 Ala. 474.
It may be true that, if at the time the deed was offered, there had been an objection that there was not at the time the deed was offered, any proof of actual possession under the deed, the court should have sustained it, but no such objection appears to have been made.
Is the deed void because of uncertainty and indefiniteness in the description of the lands, so as to bring it within the qualification above stated to the rnle bearing upon the admissibility of a void tax deed as color of title? The appellee contends that it is, and that there can, for this reason, be no proper application of the rule, id certum- est quod cert-uni reddi potest. “This contention raises the question of patent ambiguity, which the authorities say can neither be explained nor made certain by parol proof.” In the case of Chambers v. Ringstaff, 69 Ala. 140, Judge Stone, discussing the question said: “The distinction between latent and patent ambiguity has long existed, and the general rule applicable to each class of' cases should not be disturbed. When a contract or conveyance, on its face, or aided by judicial knowledge, equally describes two or more persons, things etc., that is patent ambiguity, or ambiguity apparent. In such cases, the rule is clear, and Ave do not wish to depart from it, that parol proof of what was intended by the contracting parties will not be received. Latent ambiguity exists, when, on the face of the paper, no doubt or uncertainty exists, bnt by proof aliunde, the language is shoAvn to be alike applicable to two or more
We judicially know that there is no range 1 east in Mobile county, and we judicially know that there is a township 2 north, and a township 2 south, in that county, and that there is a section 36 in each of said townships. The deed we have for construction, in the description of the lands by the government survey designates with equal clearness, the two tracts of land, and if this were all, the ambiguity might be patent and parol evidence would not be admissible to aid the description. But we find in the deed offered in evidence, this recital, to-wit: “That, whereas, on the 17th day of May, A. D., 1881, and for three successive weeks thereafter, advertisement was made for the sale of the lands hereinafter described and conveyed, for the payment of the State and county taxes then due from M. D. Mann, the owner, of said lands.” We do not judicially known which tract M. D. Mann owned, and we are clear in our conclusion that this reference to the lands in the deed would authorize a resort to competent parol evidence to aid the description
It follows that the court erred in sustaining the objections made to the deed, offered as it was, to show color of title merely.
After the defendant as a witness in his own behalf had without objection, testified that he purchased the land described in the complaint from the State and paid $80.f 0 therefor, and that he immediately went into possession of it, and had been in possession of it ever since, the plaintiff moved to exclude this testimony because the deed under which he claims to have purchased, is void and shows on its face that it does not describe any land whatever. The court granted the motion and the defendant excepted. In this ruling we think the court erred. It will be noted, that the only deed which had been offered by defendant, was on objection of the plaintiff not allowed in evidence, therefore, at the time the motion was made, there was no evidence that defendant was claiming under a deed, void or otherwise. Hence the specific ground of the motion was without foundation, and for this reason should have been overruled. But we think the evidence was not objectionable. It was certainly competent for the defendant to show that he went into possession of the land, and the evidence that he bought it and paid for it was relevant as tending to show the nature and character of the possession, and his claim, whether under bona fide claim of purchase. — Barron v. Barron, 122 Ala. 194.
It was not competent for the defendant when testifying to look at the deed and say whether the land described in the deed was in township 2 south, or township 2 north, and whether it was in range 4 east or west. The description in the deed might have been aided by proof tending to show that M. D. Mann once owned the lands or that he was in possession of them and that he was in possession of the lands in township 2 south if such proof was obtainable, and that the tax proceedings were had
The defendant should, under the rule above declared, have been permitted to show that he purchased the land and paid for it and that he was claiming under the purchase. This does not mean that the deed would have been admissible in evidence Avithout proof aliunde aiding the description.
The 7th ground in the assignment of error, presents for consideration the propriety of the court’s action in giving the affirmative charge for the plaintiff, hut as the judgment- must be reversed for errors pointed out above, Ave deem it unnecessary to consider this assignment.
Reversed and remanded.